For Pre-1972 Music, It’s the Turtles All the Way Down

Marc Hogan

By Marc Hogan

Lead News Writer
on 10.16.14 in News

Flo & Eddie of the Turtles‘ recent landmark legal victory is already starting to reverberate across the digital radio landscape. The ultimate outcome could affect who gets paid when listeners hear older music on SiriusXMPandora or potentially even local broadcast stations.

Most recently, SiriusXM has appealed a judge’s ruling that it infringed copyrights by playing songs from before 1972 without paying royalties for “public performance” of those recordings. In a court filing Wednesday, lawyers for the satellite radio company pointed to the case’s “far-reaching implications” and noted that it was the first of its kind.

SiriusXM’s attorneys also observed that the judge in a similar case filed against the company by the major labels had “reached the opposite conclusion” from the Flo & Eddie court. But that contention could already be out of date. On Tuesday, court documents show, Los Angeles Superior Court Judge Mary Strobel approved a motion by the labels that she had previously opposed. As quoted by The Hollywood Reporter, Stroble wrote that although the Flo & Eddie ruling wasn’t binding, she found its reasoning “persuasive.”

Meanwhile, earlier this month, Flo & Eddie filed a separate lawsuit against Pandora. As in the SiriusXM case, the “So Happy Together” singers argue that the online radio giant had infringed copyright by broadcasting pre-1972 sound recordings without paying a performance royalty. Pandora also faces a separate lawsuit from the big record companies in New York, but Flo & Eddie filed their complaint, again like the SiriusXM claims, in California.

The dispute involves royalty payments that could be worth as much $60 million a year, according to one estimate.

Under federal copyright law, digital radio providers don’t have to pay royalties for public performance of sound recordings made before February 15, 1972. They still pay songwriting royalties on pre-1972 music, and they pay both songwriting and performance royalties on music made after the 1972 cutoff date. (Traditional AM and FM radio stations pay songwriting royalties on all music but pay no performance royalties, pre-1972 or post-1972.)

The latest legal battles add urgency to lobbying efforts in Congress. Sirius XM and Pandora have both indicated they would consider backing an overhaul of copyright legislation that forces their competitors to pay, too.

SoundExchange, a royalty-distribution nonprofit, got signatures from a who’s who of legacy artists in support of last year’s RESPECT Act, which would require digital radio services to pay pre-1972 performance royalties.

The Content Creators Coalition, an advocacy group, has been calling for legislation that would force old-fashioned “terrestrial” radio stations to pay performance royalties for all music, as well.

As the lawyers and the lobbyists get to work, the Flo & Eddie-SiriusXM ruling has already raised questions about whether California radio stations, bars, restaurants and others must start paying royalties for the public performance of pre-1972 tracks.

The Turtles might’ve scored their biggest hit yet. If it results in the people who recorded classic songs getting paid for their work, that would be a reason for music fans to applaud.